Reasonable Apprehension of Bias

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General Principles

A judge must be unbiased and as well appear unbiased. A judgement of a court cannot be valid where there is a reasonable apprehension of bias.

Burden and Standard of Proof

The burden of establishing bias is upon the claimant.

There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.

Presumption of Integrity

This strong presumption arises from the "presumption of judicial integrity".

The presumption of integrity is rebutted where there is "cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision".

Test for Bias

The focus of consideration should not be on whether the accused was prejudiced, but whether he would reasonably consider that he did not have a fair trial or whether reasonable-minded people who watched the trial would have believed the trial was not fair.

The test for reasonable apprehension of bias requires the reviewing judge to consider whether a reasonable person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that ... judges swear to uphold" would apprehend that there was bias. It has also been phrased as requiring that "a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias."

An apprehension of bias triggered by allegedly improper cross-examination requires that the court consider whether the "improperly questions" would lead a fully informed person to reasonably conclude the court's ability to decide the case to be impaired.

"Cogent evidence" is required to overcome the presumption.

Circumstances

Where a judge has made findings of fact on sentencing a co-accused for an offence may give rise to an apprehension of bias that would require the judge to withdraw.

The fact that the applicant lost a motion or hearing before the judge, regardless of the similarity of the case, does not preclude the judge from judging the new issue.

A judge referring to the accused as "Mr. Guilty" before a jury will not on its own be sufficient to create an apprehension of bias.

A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.

A judge sighing at an accused with an extended record whom the judge had previously represented and calling him by his first name is not enough.

Procedure

An application for recusal of a judge must be made before the judge against whom bias is alleged.

Appeals

A reasonable apprehension of bias is grounds for appeal under either s. 686(1)(a)(i) or (iii) for unreasonable verdict or miscarriage of justice. There is a presumption to judicial integrity. Thus, there needs to be substantial grounds and cogent evidence to support an apprehension.